U.S. v. Gordon

Decision Date14 January 1977
Docket NumberNo. 76-1497,76-1497
PartiesUNITED STATES of America, Appellee, v. John H. GORDON, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

Damon Young, Texarkana, Ark., and Harry B. Friedman, Texarkana, Tex., for appellant; Harkness, Friedman & Kusin, Texarkana, Tex., and Young, Patton & Filsom, Texarkana, Ark., on brief.

J. Michael Fitzhugh, Fort Smith, Ark. for appellee; Robert E. Johnson, U.S. Atty., and J. Michael Fitzhugh, Asst. U.S. Atty., Fort Smith, Ark., on brief.

Before LAY, ROSS and WEBSTER, Circuit Judges.

ROSS, Circuit Judge.

John Gordon was convicted on five counts of knowingly making false and material statements for the purpose of obtaining Medicare payments in violation of 18 U.S.C. § 1001. Gordon was also convicted on ten counts of making false and material statements for the purpose of obtaining Medicare payments in violation of 42 U.S.C. § 1395nn. We affirm the judgment of conviction.

The defendant is a Doctor of Podiatry. The government adduced substantial evidence at trial that Gordon made application for Medicare payments with respect to podiatric services he did not perform.

At trial, Dr. Lawrence Connelly, a Doctor of Podiatry, testified that based on his personal examinations of several patients whom Gordon allegedly treated, various services for which the defendant billed Medicare had not been performed. To illustrate Dr. Connelly's testimony, the district court admitted into evidence various slides which depicted the feet of certain individuals whom Gordon had allegedly treated and whom Dr. Connelly had examined. The photographs were taken on November 4, 1975. Gordon contends that the photographs were not competent to prove the podiatric conditions which they were offered to prove because the allegedly false representations were made by Gordon in May, June and July 1975. The defendant also argues that the failure of the government to produce the individuals whose feet were depicted violated his sixth amendment right to confront his accusers. Both contentions are without merit.

It is well settled that:

A photograph may be used, like a map or diagram, as a witness' pictured expression of the data observed by him and therein communicated to the tribunal more accurately than by words or it may be used as a so-called silent witness.

III Wigmore, Evidence § 792, at 228 (Chadbourn rev. 1970). Like other matters of relevancy, the use of photographs is committed to the sound discretion of the trial judge. Barber v. United States, 271 F.2d 265 (6th Cir. 1959).

The photographs in this case were not remote in time as the defendant argues. The services Gordon claimed to have performed related to the excision and removal of toenails. The evidence showed that a toenail takes eighteen to twenty months or longer to grow back. Thus the photographs were relevant to corroborate Dr. Connelly's testimony that the services charged for were not performed.

The confrontation claim is frivolous. The photographs were used only to demonstrate the foundation underlying Dr. Connelly's opinion. Dr. Connelly was available for cross-examination and was in fact fully cross-examined by defense counsel.

The defendant was indicted on eleven counts of violating 18 U.S.C. § 1001. He was also indicted on ten counts of violating 42 U.S.C. § 1395nn. Violation of the former is a felony whereas violation of the latter is a misdemeanor. The defendant claims that since all counts related to similar transactions, equal protection and due process required the government to prosecute him only for violation of the misdemeanor section, 42 U.S.C. § 1395nn, even though each of the counts involved different patients. We disagree.

We have found no legislative history indicating that 42 U.S.C. § 1395nn, which was enacted subsequent to 18 U.S.C. § 1001, was designed to repeal §...

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  • U.S. v. Bilzerian
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 3 Enero 1991
    ...permitted under Sec. 1001 despite the existence of other overlapping and more specific false statement statutes. United States v. Gordon, 548 F.2d 743, 744 (8th Cir.1977); see also, e.g., United States v. Grotke, 702 F.2d 49, 54 (2d Cir.1983) (Sec. 1001 applicable despite more specific curr......
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    • 3 Noviembre 1994
    ...of 18 U.S.C.A. Sec. 1001 (West 1976), providing for felony punishment, to fraudulent financial disclosure report); United States v. Gordon, 548 F.2d 743, 744 (8th Cir.1977) (later enactment of statute providing misdemeanor penalty for Medicare fraud did not preclude felony prosecution under......
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    • 29 Abril 1996
    ...United States v. Hopkins, 916 F.2d 207, 218 (5th Cir.1990); United States v. Hansen, 772 F.2d 940 (D.C.Cir.1985); United States v. Gordon, 548 F.2d 743, 745 (8th Cir.1977); United States v. Carter, 526 F.2d 1276, 1278 (5th Cir.1976)); United States v. Derezinski, 945 F.2d 1006, 1010 (8th Th......
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    • 24 Junio 1998
    ...(2 U.S.C. § 706); United States v. Duncan, 693 F.2d 971, 975 (9th Cir.1982) (31 U.S.C. §§ 1058, 1101); United States v. Gordon, 548 F.2d 743, 744-45 (8th Cir.1977) (42 U.S.C. § 1395nn); United States v. Burnett, 505 F.2d 815, 816 (9th Cir.1974) (18 U.S.C. § 1919).7 In Beer, the defendant wa......
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